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OLYMPIA, Wash. — In a stunning reversal, the Washington State Pharmacy Board has decided to allow pharmacists with conscientious objections to filling certain prescriptions to merely refer patients to other nearby pharmacies.

On July 7 Judge Ronald Leighton of the U.S. District Court of the Western District of Washington said that state attorneys had asked that the trial, due to start two weeks later, be postponed “to allow the Pharmacy Board time to complete its rulemaking processes” in rewriting the regulation in question.

The original controversial rule was passed by the board in 2007. It states that a pharmacist must fill a patient’s lawful prescription, even if he has a moral objection to complying. The only alternative is to have another on-staff pharmacist, who does not object, dispense the drug.

On Nov. 8, 2007, Judge Leighton ruled in favor of Kevin Stormans, co-owner of Ralph’s Thriftway in Olympia, and two other pharmacists, Rhonda Mesler and Margo Thelen, temporarily halting enforcement of the Washington State Pharmacy Board regulation threatening pharmacists’ conscience rights, which forced them to fill prescriptions for Plan B, an “emergency contraceptive” that can also cause very early abortions.

In granting the injunction, Leighton stated that “on the issue of Free Exercise of Religion alone, the evidence before the Court convinces it that plaintiffs, individual pharmacists, have demonstrated both a likelihood of success on the merits and the possibility of irreparable injury.”

He said that “the regulations appear to target religious practice in a way forbidden by the Constitution” and “appear to intentionally place a significant burden on the free exercise of religion for those who believe life begins at conception.”

State attorneys appealed to the Ninth U.S. Circuit Court in July 2009 to lift the injunction. But the three-judge panel found that Washington State attorneys failed to demonstrate that abortion-inducing drugs, such as “Plan B,” weren’t already easily available.

But the court also stated that the pharmacists would likely have to abide by the state board’s rule, forcing pharmacists to sell Plan B, even though it violated their consciences.

Luke Goodrich, an attorney with The Becket Fund, which has provided legal counsel for the pharmacists, reacted to the Circuit Court ruling, saying: “No Americans should be forced out of their profession solely because of their religious beliefs.

“The government should accommodate and protect the fundamental rights of all members of the medical profession, not punish some members because of their religious beliefs,” he added.

Surprised Planned Parenthood

The reversal caught Planned Parenthood by surprise. Elaine Rose, CEO of Planned Parenthood’s Washington political arm, said that she was “completely bewildered and baffled” by the moves by the board and its lawyers. She pointed out that in settling a lawsuit “you don’t just completely do a 180, and backtrack, [giving] the other side everything they want.”

But the State decided the last thing it wanted was a lengthy court fight.

The decision to reverse course on the regulation was prompted by a realization that this legal battle could continue for another three years or more, according to State Attorney General Rob McKenna’s spokeswoman, Janelle Guthrie.

She added that the board had already been considering changing the regulation in order to speed up access to medications by referral. Board vice chairman Albert Linggi agreed, saying that the present ruling made it “financially not viable” to insist that “pharmacies stock every drug that’s on the market.”

The Pharmacy Board will begin the rulemaking process which consists of public hearings allowing reactions in support of or objecting to the rule change, possibly taking up to nine months to complete. But it is unlikely that the board will decide to leave the regulation as is.

When the Pharmacy Board voted unanimously on June 29, it reached a legal agreement with board members, their attorneys and the pharmacists, stipulating that, by this vote, the board intends “to adopt a rule allowing facilitated referrals for all pharmacies and pharmacists out of stock, or unable or unwilling to stock or timely deliver or dispense, lawfully prescribed medications on-site to their patients for any reason, including for conscientious reasons.”

Linggi said he believes the board will favor giving pharmacists that permission.

Reinforcing that belief, Judge Leighton, in agreeing to a postponement, ruled that: “This court will lift the stay and set trial on an expedited basis upon plaintiffs’ request at any point in the future if plaintiffs reasonably believe at any time during the rule-making process that the proposed rules do not allow them to engage in a facilitated referral instead of stocking or dispensing Plan B.”

Best Possible Outcome

Reacting to the news of the Pharmacy Board’s reversal of its policy, Marie Hilliard, director of bioethics and public policy for the National Catholic Bioethics Center, stated: “We applaud the Washington pharmacists for taking such a stand in defense of conscience.”

Hilliard explained that “legal protection of conscience for all citizens has been the bedrock of our society.” She noted that when an earlier repressive regime used laws to force health care providers to violate conscience, it faced justice at the Nuremberg Trials.

“Laws only reflect the will of the people at any one time; and since they often change, they are no barometer of what constitutes ethical health care practice,” she noted.

Stormans, the pharmacy owner who is one of the plaintiffs in the original lawsuit, remarked recently that he was “cautiously optimistic.”

“If (the Pharmacy Board) end up with what they are indicating they want to do, then this will satisfy our lawsuit,” Stormans said. “There will likely be several [public] hearings,” which he hopes “will not have a negative effect on the board. But time will tell.”

Stormans said that he wasn’t sure why “the board chose to change course and look at adopting this rule,” but he added: “They are in place to protect the interests of the consumer…and the referral process is in the best interest of the consumer, in getting the product they need in a timely fashion, which the board has indicated that they believe as well.”

Hilliard explained the issue from an ethical standpoint, saying: “The proposed rules are not just in reference to a situation in which one will not dispense a medication, but also situations in which one cannot because of unavailability of a medication. Thus, a general policy, that provides for a ‘transfer of care’ to include both scenarios, would be morally licit.”

“One is not asking someone else to carry out an act that one finds morally objectionable, but to transfer care to another provider,” she concluded.

Stormans believes that this approach will work for all pharmacists and pharmacy owners, adding: “After all, this is how it has been handled for years and years.”

Janelle Guthrie works for the Board of Pharmacy, not Rob McKenna. Check your facts, people!

Posted by Hazel on Thursday, Jul 29, 2010 11:10 AM (EDT):

This is one of the most inaccurage “news” articles I have ever read! Don’t you people do any fact-checking? “The original controversial ruling”—by the Pharmacy Board? The Pharmacy Board made a controversial RULE. Courts issue rulings. Please. You wouldn’t actually have to be familiar with the case to pick up on that error.

“The only alternative is to have another on-staff pharmacist,”—wrong again! Since Plan B is over the counter, you need an on-staff pharmacy tech, a much less expensive staffing arrangement.

The description of the Court of Appeals decision regarding the injunction is goobledy-gook, written by someone with no understanding of the ruling whatsoever. The availability of Plan B had nothing to do with the legal thinking that led to the overturn of the injunction. And this statement, “But the court also stated that the pharmacists would likely have to abide by the state board’s rule, forcing pharmacists to sell Plan B, even though it violated their consciences.” The Court of Appeals didn’t “state that.” That’s totally the “reporter’s” interpretation.

Posted by Jeff on Friday, Jul 23, 2010 5:47 PM (EDT):

The Federal government already has a mail order drug business through the military, VA, etc. Why violate some pharmacist’s constituional rights when the government could just Fed-ex the life-killing drugs overnight themselves?

Posted by Diane D'Ottavio on Thursday, Jul 22, 2010 9:08 PM (EDT):

This Washington Pharmacist makes me want to go tell it on the mountain. Bless her and her family and friends for having the courgageto fight such a battle. God will bless them all with His favors and graces today and always for such Holyboldness. Done with such love and peace and Truth on their side, how can one go wrong? Keep going and we will all keep you in our prayers!!!!!!!

This reversal is good news and I hope is a sign of things to come. There is real fear that, with implementation of the new federal health care law, and the fact that its funds are already being diverted for abortions in several states, health care workers will not be able to opt out of perscribing contraceptives or abortifacients and still practice medicine.A patient’s right to “choose” will trump the health care worker’s right to freedom of conscience and religion.
Having been refused positions for which I am well qualified because of my refusal to refer for abortions or contraceptives, and knowing many other health care providers who have also had this experience, any victory for prolife health care personnel is cause to rejoice. However, the future is murky, and having “Catholics” who tout freedom of choice is a stab in the back which could have grave future repurcussions.

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